Tuders v. Kell

• Decision Date: 25 June 1999
• Citation: 739 So.2d 1069
• Parties: Randy TUDERS et al. v. Paul KELL, d/b/a Kell Realty Company.
• Court: Alabama Supreme Court

739 So.2d 1069

Randy TUDERS et al. v. Paul KELL, d/b/a Kell Realty Company.

1970315.

Supreme Court of Alabama.

June 25, 1999.

Robert R. Riley, Jr., and Foster F. Marshall, Birmingham; D. Leon Ashford and Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham, for appellants.

Edgar M. Elliott IV and Deborah Alley Smith of Rives & Peterson, P.C., Birmingham; and John M. Fraley of Lusk, Fraley, McAlister & Simms, Birmingham, for appellees.

LYONS, Justice.

The plaintiffs—Randy Tuders; James Tuders; Larry Nance, individually and as personal representative of the estate of Bobbi Jo Nance, deceased; and Anita Hicks, individually and as mother of Amanda Hicks and Kyle Hicks, deceased minors—appeal from a summary judgment entered in favor of the defendant, Paul Kell, doing business as Kell Realty Company. We affirm.

I.

On July 4, 1995, Randy Tuders and his son James Tuders; Larry Nance and his wife Bobbi Jo Nance; and Anita Hicks and her children Amanda and Kyle Hicks (all referred to as "the boaters"), were passengers in a boat on Neely Henry Lake when a severe thunderstorm developed suddenly. As the weather got worse and the boaters saw lightning in their vicinity, they decided to get off the water immediately. The nearest shelter from the lightning and rain was a pier and boathouse, still under construction, that belonged to Kell. They tied the boat to the pier and stood on the pier under an overhanging portion of the boathouse roof to wait out the storm. Approximately 15 minutes later the boathouse collapsed. Bobbi Jo Nance, Amanda Hicks, and Kyle Hicks died; the others were injured. At the time of the accident, Kyle Hicks, Amanda Hicks, and James Tuders were ages 4, 8, and 16, respectively.

Kell had drawn a sketch of the boathouse he wanted and then had hired someone to build it for him. The plaintiffs testified that it was apparent that the boathouse was under construction. It had a roof, but the outside walls were incomplete. Bracing had been used to stabilize the walls of the boathouse during its construction; however, the bracing had been removed from the north wall before the construction was complete and before the boaters took shelter there. The evidence does not indicate who removed the bracing from the boathouse.

Randy Tuders, James Tuders, Larry Nance, and Anita Hicks filed a wrongful-death and personal-injury complaint against Kell and others.¹ They alleged that the defendants had negligently caused the deaths and personal injures incurred in the July 4, 1995, incident. The trial court entered a summary judgment in favor of Kell, holding that the boaters were trespassers on Kell's property; that the only duty Kell owed to the boaters was to refrain from wantonly or intentionally injuring them; that the plaintiffs did not present substantial evidence indicating that Kell had wantonly or intentionally injured them; and that §§ 35-15-1 to -5, Ala.Code 1975, shielded Kell from any liability in this case. The plaintiffs appealed. All defendants other than Kell have been dismissed.

II.

We first address whether the Code sections governing the recreational use of land, §§ 35-15-1 to -5 ("the recreational-use statute"), apply to a situation like that presented in this case.² If so, then a landowner like Kell is liable only for willfully or maliciously injuring those who enter the land for recreational purposes. Kell argues that the recreational-use statute applies to him and that it limits his liability for accidents occurring on his property that arise out of certain recreational uses, among them water sports and boating. The plaintiffs argue that in order for the recreational-use statute to apply, a landowner must have granted permission to the general public to use the land for recreational purposes. Kell disagrees, arguing that it is not necessary for the landowner to give permission to the general public to use the land, and that cases interpreting the recreational-use statute, such as Clark v. Tennessee Valley Authority, 606 F.Supp. 130 (N.D.Ala.1985), require that it be construed liberally in order to limit a landowner's liability.

Section 35-15-1 states:

"An owner, lessee or occupant of premises owes no duty of care to keep such premises safe for entry and use by others for hunting, fishing, trapping, camping, water sports, hiking, boating, sight-seeing, caving, climbing, rappelling or other recreational purposes or to give any warning of hazardous conditions, use of structures or activities on such premises to persons entering for the above-stated purposes, except as provided in section 35-15-3."

This section refers to the rights of "persons entering" for certain activities (hunting, fishing, etc.). Section 35-15-1 does not specify whether the legislature intended that the "persons entering" were doing so lawfully. Section 35-15-3, cross-referenced in § 35-15-1, deals with the activities in the context of permission given for such use. Section 35-15-2 also deals with the effect of permission given for such activities. The principles of statutory construction require that we construe statutes dealing with the same subject matter in pari materia. Lambert v. Wilcox County Comm'n, 623 So.2d 727 (Ala.1993). Furthermore, those principles call for us to refrain from using a strained or unnatural construction during the process of interpretation. Hall v. Underwood, 258 Ala. 392, 63 So.2d 683 (1953). See, also, Opinion of the Justices No. 368, 716 So.2d 1149 (Ala.1998). We therefore hold that in § 35-15-1, the legislature, in speaking of "recreational purposes," was speaking of activities carried on or conducted by persons lawfully on the premises of the "owner, lessee or occupant."

This Court has previously given such a construction to the recreational-use statute. See Wright v. Alabama Power Co., 355 So.2d 322 (Ala.1978), where this Court stated:

"The [recreational-use statute] was intended to [ensure] that landowners were not to be held to a standard of due care toward persons upon their land with permission for hunting, fishing and recreational purposes.... The legislation [gives] persons upon the land with permission or invitation, but for purposes unrelated to the owner's business, ... the status of licensees[,] with the [landowner's] duty being the duty owed to licensees."

355 So.2d at 324 (emphasis added). Although the recreational-use statute does not require that, for the statute to apply, the landowner must have given the general public permission to use the land, it is necessary that the landowner have given permission to the person or persons using the land to use it for recreational purposes. It is undisputed that Kell had not given anyone permission to use his land, pier, or boathouse. Therefore, Kell is not entitled to the immunity provided by the recreational-use statute.

We note that § 35-15-3 provides that the recreational-use statute "does not limit the liability which otherwise exists for [willful] or malicious failure to guard or warn against a dangerous condition, use, structure or activity." As we discuss in Part IV of this opinion, Kell's conduct in regard to the incident of July 4, 1995, was neither willful nor malicious. Furthermore, the landowner's liability recognized by § 35-15-3 (liability "for [willful] or malicious failure to guard or warn") is premised upon someone's using real property after the "owner, lessee or occupant" has given permission to use the land for recreation—that circumstance is far removed from the situation presented in this case, where the plaintiffs claim they and the other boaters had permission implied by law pursuant to the "doctrine of necessity." The recreational-use statute applies to landowners who have given express permission for their land to be used for recreational purposes.

III.

Having determined that the recreational-use statute does not apply, we now consider whether the boaters were trespassers or were licensees. "This Court looks to the status of the injured party in relation to the defendant's land or premises in deciding whether the defendant should be held liable for an injury to a visitor upon the land or premises." Hambright v. First Baptist Church-Eastwood, 638 So.2d 865, 868 (Ala.1994). If a person is on the landowner's property without the consent of the landowner, then that person is a trespasser. Copeland v. Pike Liberal Arts School, 553 So.2d 100 (Ala.1989). If a person is visiting the landowner's property with the landowner's consent or as the landowner's guest, but with no business purpose, then that person is a licensee. Id.

The plaintiffs argue that one who seeks shelter on another's land because of an emergency should be considered an "implied licensee," rather than a trespasser, pursuant to the "doctrine of necessity." The plaintiffs argue that under the principles stated in Restatement (Second) of Torts § 330 (1965), a person who enters another's land because of an emergency or necessity may enter under an "implied license." Kell points out that Alabama courts have not adopted Restatement § 330. He argues that because he was not present when the boaters came onto his property, did not extend any invitation to them to come onto his pier or into his boathouse, and did not know they were present, they were trespassers.

A marine patrol officer who had been stationed on Neely Henry Lake for approximately 30 years testified that the storm that arose on July 4, 1995, was the worst storm he had ever seen on that lake. Clearly, the boaters could not have reached their destination before the storm overtook them, so they sought shelter on the nearest property. According to the testimony presented, it is not unusual for boaters on Neely Henry Lake to do that. Kell testified that he had sought shelter on a stranger's land during a storm, but said he had taken shelter only on the land, not on a pier or near a building.

Section 330, Restatement (Second) of Torts, states the principle that "[a] licensee is a...